Citation Nr: 0122936 Decision Date: 09/20/01 Archive Date: 09/24/01 DOCKET NO. 94-30 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. R. Olson, Counsel INTRODUCTION The veteran's active military service extended from August 1962 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The June 1996, the Board denied service connection for post- traumatic stress disorder (PTSD) and also denied an increased evaluation for residuals of a fracture of the L1 vertebra, with low back pain, rated as 20 percent disabling. The veteran appealed to the United States Court of Veterans Appeals (now the United States Court of Appeals for Veterans Claims) (hereinafter "Court"). In May 1999, the Court, by memorandum decision determined that while the veteran had submitted a well grounded claim for service connection for PTSD, the Board did not err in concluding that there was no clear diagnosis of such disorder. The Court also concluded that the Board's failure to apply a provision of the VA Adjudication Procedure Manual, M21-1, Part III, para. 5.14c (Change 47) (effective Nov. 1, 1995) was non- prejudicial error. The veteran appealed to the United States Court of Appeals for the Federal Circuit (Federal Circuit Court). In May 2000, the Federal Circuit Court vacated and remanded the case to the Court for consideration of whether the intervening change in 38 C.F.R. § 3.304(f) regarding medical evidence in PTSD cases requires a different result. The Court, in decisions dated in August and December 2000, vacated the June 1996 Board decision and remanded the case to the Board for compliance with the Federal Circuit Court's decision. The Federal Circuit Court has held that a court or other adjudicative body first must be sure that it has jurisdiction over the matter before it. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Court has held that issues and claims not pursued on appeal are considered abandoned. See Ford v. Gober, 10 Vet. App. 531 (1997); Bucklinger v. Brown, 5 Vet. App. 435 (1993). In this case, a review of the briefs submitted by the appellant's attorney indicates they do not address the merits of the Board's decision insofar as the rating for the back disorder was concerned. Also, neither the Court's decisions nor the Federal Circuit Court's decision addresses the appropriateness of the rating for the back disorder. Consequently, the Board finds that the claim for a higher rating for the service-connected back disorder was not pursued on appeal to the Court. And therefore, pursuant to the case law established by the Court, that claim must be considered to have been abandoned-meaning the Board's previous decision concerning that claim is final and binding on the veteran. And absent a motion for reconsideration of that decision concerning that issue, or the submission of additional relevant evidence, the Board does not have jurisdiction to again review the back disorder claim. Barnett; 38 U.S.C.A. §§ 5108, 7104, 7252, 7261 (West 1991). REMAND The Federal Circuit vacated and remanded the case for consideration of whether the intervening change in 38 C.F.R. § 3.304(f) regarding medical evidence in PTSD cases requires a different result. [Where the law changes after a claim has been filed or reopened but before the administrative or judicial process has been concluded, the version most favorable will apply unless Congress provided otherwise or permitted the Secretary to provide otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991).] The veteran's attorney has requested that the case be remanded to the RO for review under the change in 38 C.F.R. § 3.304(f). The Board agrees that the RO should be the first to apply the new regulation criteria to the facts of this case. There also has been a significant change in the law during the pendency of this appeal, however. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This new law since has been codified, as amended, at 38 U.S.C.A. § 5100 et seq. (West Supp. 2001). It redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant of information and evidence necessary to substantiate a claim for VA benefits. It also eliminates the concept of a well- grounded claim and supersedes the decision of the Court in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA could not assist in the development of a claim that was not well grounded. This change in the law is applicable to claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. VAOPGCPREC 11-2000 (Nov. 27, 2000); see also Karnas, 1 Vet. App. at 312-13. Because of the change in the law brought about by the VCAA, a remand in this case is required for compliance with the notice and duty to assist provisions contained in the new law. In addition, because the RO has not yet considered whether any additional notification or development action is required under the VCAA, it would be potentially prejudicial to the appellant if the Board were to proceed to issue a decision at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)). Therefore, for these reasons, a remand is required. In an effort to assist the RO, the Board has reviewed the claims file and identified certain assistance that must be rendered to comply with the VCAA. However, it is the RO's ultimate responsibility to ensure that all appropriate development is undertaken in this case. The VCAA emphasizes the urgent need for VA to obtain and consider all relevant Federal records. 38 U.S.C.A. § 5103A (b)(3), (c)(3) (West 1991 & Supp. 2001). In a January 1992 letter, another attorney indicated that he was representing the veteran for a disability claim before the Social Security Administration (SSA). And in a variety of contexts, the Court has emphasized the need to obtain and consider SSA medical records when deciding a claim for VA benefits. See e.g., Tetro v. West, 13 Vet. App. 404 (2000); Waddell v. Brown, 5 Vet. App. 454 (1993); Murincsak v. Derwinski, 2 Vet. App. 363, 371-2 (1992); Masors v. Derwinski, 2 Vet. App. 181 (1992). Thus, the RO should obtain and consider the veteran's SSA medical records. In this case, the Court determined that the Board's failure to apply a provision of the VA Adjudication Procure Manual, M21-1, Part III, para. 5.14c (Change 47) (effective Nov. 1, 1995) was non-prejudicial error. However, in another case, Patton v. West, 12 Vet. App. 272 (1999), the Court held that the provisions were regulatory in nature and that the provisions requiring a preponderance of evidence to establish the claimed stressor set the wrong standard. The equipoise doctrine should have been applied. As the Board's previous decision was vacated, further review must comply with all applicable case law, including that set forth in Patton, Id. The RO should review the evidence and determine, in the first instance, whether the positive and negative evidence that the claimed stressor occurred is in approximate balance and, if so, resolve all reasonable doubt in the veteran's favor. 38 C.F.R. § 3.102. The veteran's attorney has asserted that the case should be returned to the RO to assure compliance with the VCAA. He specifically notes that the VCAA requires VA to notify a claimant of the evidence necessary to support his claim. 38 U.S.C.A. § 5103(a) (West 1991 & Supp. 2001). The RO should review the file and accomplish any additional development required to comply with VCAA and VA Adjudication Procedure Manual, M21-1, Part III, para. 5.14c. The attorney's presentations show that he is familiar with VA Adjudication Procure Manual, M21-1, Part III, para. 5.14c. The claimant should submit any evidence which might be considered under that paragraph or, if the veteran or his attorney know of such evidence, request VA assistance in obtaining it, giving the RO complete identifying information. The pertinent evidence for VA Adjudication Procure Manual, M21-1, Part III, para. 5.14c includes: Any reports from the military police, shore patrol, provost marshal's office, or other military law enforcement. It includes information from sources including: A rape crisis center or center for domestic abuse, A counseling facility, A health clinic, Family members or roommates, A faculty member, Civilian police reports, Medical reports from civilian physicians or caregivers, A chaplain or clergy, or Fellow service persons. It includes evidence of behavior changes that occurred at the time of the incident. Examples of behavior changes that might indicate a stressor are (but are not limited to): (a) Visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; (b) Sudden requests that the veteran's military occupational series or duty assignment be changed without other justification; (c) Lay statements indicating increased use or abuse of leave without an apparent reason such as family obligations or family illness; (d) Changes in performance and performance evaluations; (e) Lay statements describing episodes of depression, panic attacks or anxiety but no identifiable reasons for the episodes; (f) Increased or decreased use of prescription medications; (g) Increased use of over-the-counter medications; (h) Evidence of substance abuse such as alcohol or drugs; (i) Increased disregard for military or civilian authority; (j) Obsessive behavior such as overeating or undereating; (k) Pregnancy tests around the time of the incident; (l) Increased interest in tests for HIV or sexually transmitted diseases; (m) Unexplained economic or social behavior changes; (n) Treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma; (o) Breakup of a primary relationship. The claimant or his attorney should notify the RO of any evidence of any of these factors. They should notify the RO of any additional evidence which they believe might support the claim. Accordingly, this case is REMANDED for the following: 1. The RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 1991 & Supp. 2001) are fully complied with and satisfied. 2. The RO should obtain and consider the veteran's SSA medical records. 3. The RO should review the claims file and ensure that all notification and development action required by VA Adjudication Procedure Manual, M21-1, Part III, para. 5.14c are fully complied with and satisfied. 4. The RO should readjudicate the claim. a. In determining whether the claimed personal assault stressor occurred, the RO should apply the equipoise standard and not require a preponderance of evidence. b. The RO should consider whether the intervening change in 38 C.F.R. § 3.304(f) regarding medical evidence in PTSD cases requires allowance of the claim. The claim also should be considered under the previous standard. The RO should apply the version of the regulation most favorable to the veteran. 5. Thereafter, if the benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits-to include a summary of the evidence and applicable laws and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant has the right to submit additional evidence and argument concerning the claim the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2001) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. Keith W. Allen Acting Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2000).